In respect of the much discussed Moorthy @ Mohammad Abdullah affair, may I say the following.

Article 121(1A) of the federal constitution which amendment came into effect on June 10, 1988 (prior to which the High Court had unfettered jurisdiction over all matters in the federation) - provides that the (civil) high courts ' shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts.' It is important to reflect on the negative (as opposed to the positive) way in which the Article is framed.

It is noteworthy that the High Court has jurisdiction over all other matters over which the syariah courts have no jurisdiction, including, for example, the grant of restraining injunctions in domestic violence cases involving Muslims, grant of declaratory decrees where the syariah courts have no power to grant any such relief sought and jurisdiction over matters relating to Muslim probate and administration.

One need not be a lawyer to conclude that the preliminary question whether a matter is 'within (or without) the jurisdiction of the syariah courts' is for the High Court. Only when the High Court decides that a matter is within the jurisdiction of the syariah courts, does its own jurisdiction cease.

The question whether Moorthy remained a Hindu or had become a Muslim (there would have been a 50:50 (or some combination thereof) chance of one conclusion or other) cannot possibly be within the jurisdiction of the syariah courts because syariah courts deal with Muslims and Islam. How could it have had jurisdiction over Moorthy when he could have always been a Hindu and therefore outside the purview of the syariah courts? No one denies that the syariah courts, even after Article 121(1A), do not have jurisdiction over non-Muslims (see Mohamed Dzaiddin SCJ in Tan Sung Mooi v Too Miew Kim [1994] 4 MLJ 158).

Thus, logically, in Ng Wan Chan v Majlis Ugama Islam Wilayah Persekutuan (No 2) [1991] 3 MLJ 487, it was held that the jurisdiction of the High Court to declare the status of a person in respect of whether he was or was not a Muslim at the time of his death subsequent to the 1988 amendment was intact.

Moreover, in Dalip Kaur v Pegawai Polis Daerah, Bukit Mertajam [1992] 1 MLJ 1, the Federal Court held that the High Court had jurisdiction to grant a declaration of religious status, albeit after reference to the appropriate Fatwa Committee. Further, in Noor Jahan v Mohd Yusof & Anor [1994] 1 MLJ 158 the Supreme Court decided that if upon the High Court's examination of a relevant state enactment a matter before the High Court is not within the jurisdiction of the relevant Syariah Court, the High Court could assume jurisdiction over the matter.

Mohd Raus Sharif's (the judge in Moorthy's Case) fundamental error (or misunderstanding) of the law was in not appreciating this crucial point. He (and the High Court) had the jurisdiction and, indeed, the duty to decide, as a matter of fact, based on submission of evidence, whether Moorthy remained a Hindu or had become a Muslim. This question he palpably failed to address. Had he done so and concluded based on submitted evidence that Moorthy had in fact converted to Islam (as he, in my view, was duty bound to do: one way or the other), we would not be in this unsatisfactory situation.

As Jeffery Tan concluded, in a judgment of considerable depth and clarity, in Shaik Zolkaffily bin Shaik Natar v Majlis Agama Islam Pulau Pinang [1997] 3 MLJ 283:

'Clearly, the jurisdiction of the High Court is not taken away if the jurisdiction of the matter does not fall within the jurisdiction of the syariah courts Therefore when there is a challenge to the jurisdiction of the High Court, the key is not whether the High Court has jurisdiction but whether the matter at hand is with the syariah courts. But article 121(1A) is not the [positive] written law giving jurisdiction to the syariah courts. It merely settles the [negative] issue of concurrent jurisdiction of the High Court, in that there is none, when the jurisdiction of the subject matter is given to the syariah courts.'

In the public interest, the civil courts must reiterate the true import of Article 121(1A), which is three-fold:

The intention of Parliament was to exclude the jurisdiction of the High Court in respect of matters within the jurisdiction of the syariah courts (see the Supreme Court in Faridah bte Dato Talib v Mohamed Habibullah bin Mahmood [1990] 1 MLJ 174).

But the question of whether a matter is indeed within the jurisdiction of the syariah courts is for the High Court to decide.

The syariah courts, even after Article 121(1A), do not have jurisdiction over non-Muslims.

In conclusion, may I, with respect, submit two things:

It is still for the High Court to determine - even when its jurisdiction is challenged in a matter before it, by reference solely to the relevant state Islamic enactments whether a matter is within the jurisdiction of the syariah courts or not. Therefore, to speak of Article 121(1A) having taken away the jurisdiction of the High Court in all matters pertaining to Islamic law is a fallacy.

More controversially, in construing Article 121(1A) both commentators and the courts have neglected to appreciate the central and fundamental dichotomy between exclusive jurisdiction which must be determined by the High Court whenever its jurisdiction is challenged in favour of the syariah courts even after the 1988 amendment - and the inherent and never doubted supervisory jurisdiction of the High Court to review the decisions of all inferior courts: which includes the syariah courts (and there is nothing to suggest that they are not so).